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ICANN and Free Speech

Rebecca MacKinnon

Upon being appointed as ICANN's new CEO in Sydney, Rod Beckstrom gave a rousing speech in which he stressed the vital importance of free expression on the Internet:

I believe in a world where every human being has the ability to communicate with other human beings openly and freely.

He then evoked recent events in Iran:

… what more poignant event do we need than what we've seen in the last few weeks, when people have sought to share their sides of a story — both sides of a story, without taking a position — in what's going on in Iran around a democratic election, as people have tweeted, Facebooked, YouTubed and shared their content to organize and participate in what they seek, and the government has organized and participated and taken steps in its nature. It shows how critically vital this platform is, that you have created.

That many people will literally fight and die for.

Many ordinary, powerless people are indeed willing to fight and die. But is ICANN going to help them? Or at very least make sure that their decisions won't help those who want to muzzle them?

As Beckstrom and ICANN's board grapple with competing visions of how ICANN should evolve, will the right of ordinary citizens around the world to express themselves — sometimes in ways that companies and governments don't like — be adequately considered? It's hard to tell.

Do ICANN's recent actions and immediate plans reflect the same respect for free expression that the new CEO claims is worth fighting and dying for? I wish I could say "yes" but many people are concerned that the answer is currently leaning more in the direction of "no."

ICANN is about to implement a massive expansion of Internet real estate, most likely starting next year unless the commercial interests opposing the plan succeed in stalling the process. New "general Top Level Domains" (gTLDs) will allow anybody with the resources to apply to run a new "top level domain" registry (the part of your Internet address that goes after the dot, e.g.: .com, .net, .asia, .mobi, etc.). At the same time, ICANN also plans to implement "internationalized domain names" (IDNs). That means it will be possible for people to set up TLD registries in any language or script — including Chinese, Arabic, Farsi, Urdu, Thai, Bangla, you name it. A concrete example: after some people (yet to be determined: more about that later) have set up some IDN gTLD registries in various non-English scripts, the citizen media community I co-founded, Global Voices, will be able to set up a range of domain names in those scripts for our "Lingua" websites in a range of different languages. In Chinese it might be: 全球之声.组织 ...and so forth.

For the first time, web addresses will be truly multilingual. This represents a huge step forward toward realizing the dream of a truly multicultural, multilingual Internet that is fully accessible to people all around the world. The next several hundred million Internet users on the planet will not be English speakers, and many won't have any education in languages that use anything resembling the Latin alphabet. The next hundred million people who will join the Internet are going to be largely from developing nations, will be increasingly rural, and are going to have much lower levels of education — meaning they're a lot less likely to be the kind of educated elites who are going to feel comfortable typing English-language URL's into browsers.

Let's return to Beckstrom's Iran example. Right now, the Internet is largely the province of Iran's elites. There are a number of economic and political reasons for this. But right now there remain serious linguistic barriers to a rural Iranian with a primary school education seeking information — let alone expressing him or herself — online. With IDN gTLDs, it will for the first time become possible to interact with the Internet 100% in Farsi. Language is not the only barrier to connecting ordinary, less wealthy or educated Iranians living outside Tehran to a global community of Farsi-speakers. But I also think that English-speakers tend to gravely underestimate just how great the language barrier really is to non-college educated people who speak languages not written in Roman scripts.

It's in the interest of global free expression for IDN gTLD's to be implemented as soon as all the basic issues of technical interoperability and basic security can be worked out. However many large trademark owners (mainly companies) are concerned that new gTLD plan will increase their costs and lead to cybersquatting. If new gTLDs are to be implemented, many companies are arguing, there need to be ample safeguards in place for trademark holders. In response ICANN commissioned its intellectual property constituency to formulate a set of recommendations. The Implementation Recommendation Team's final report recommends a number of measures including a global IP Clearing House to mediate trademark disputes, a Globally Protected Marks list and a "Thick Whois” which means that registries will have to retain more consolidated information about domain name owners. Click here for a critiques and concerns submitted by a range of organizations and individuals. Privacy advocates are concerned about the concentration of data and whether this will increase the chances of registries contributing to more Shi Tao cases. Free speech advocates have long been concerned about the use of intellectual property and trademark claims to stifle legitimate free speech. These concerns abound in spades as regards the IRT report.

In keeping with this post's Iran theme, one of my favorite recent free speech critiques of the IRT is titled Mahmoud Ahmedinejad and the Globally Protected Marks List, by Graham Chynoweth. I quote at length:

At first blush, Mahmoud Ahmadinejad and the Globally Protected Marks List (GPML) do not seem to have anything in common. The first is a politician of debated repute that is seeking to quell disputes over the legitimacy of his election. The second is a recommendation that seeks to protect trademark owners and consumers from an explosion of infringement and source confusion that could be wrought by the introduction of new Top-Level Domains (TLDs). However, upon a closer analysis, they do share one common flaw: both have arguably failed to appropriately prioritize the right to free speech.

In Iran, Ahmadinejad, according to major new organizations, leads a government that has placed restrictions on what the press can cover and publish and what people may say in public. Clearly, some, and certainly Ahmadinejad, would argue that these restrictions on speech are necessary to protect the orderly occurrence of commercial and social intercourse in Iran. However, equally clearly, many would argue that these dictates violate at least one traditional, admittedly American, norm regarding speech — the prohibition on its 'prior restraint.' In order words, it isn't 'fair' or 'right' that the Ahmadinejad government has stopped people from reporting or speaking before it is known whether what they intend to say or publish will actually cause unrest.

In the IRT Final Draft Report, a recommended new mechanism, the GPML, is proposed, which will:

I. prevent individuals from applying to create a new TLD that is identical or confusingly similar to certain 'globally protected marks' until the party interested in running the TLD has gone through a not insignificant administrative process and proven "that the applied-for TLD is not sufficiently similar (visually, aurally, and in commercial impression) as to be likely, as a matter of probability and not mere possibility, to deceive or cause confusion or that it otherwise has legitimate rights to use the applied-for TLD", IRT Final Draft Report, p 19., and

II. prevent individuals from registering domain names in a new TLD that are identical to certain 'globally protected marks' until they prove that the "registration would be consistent with generally accepted trademark laws; namely, that its use of the domain name would not infringe the legal rights of the GPM owner." IRT Final Draft Report, p 19. Or more explicitly stated, in such cases, "[t]o overcome the block, the applicant must show that it has a right or legitimate interest in the initially blocked name." Id.

Just as in the Ahmadinejad case, some would argue that these restrictions are necessary to protect the orderly occurrence of commercial and social intercourse on the Internet. However, also as in the case above, many would argue that these rules violate the traditional American and Internet norm that prohibits 'prior restraints.' In other words, it isn't 'fair' or 'right' for ICANN to stop people from creating TLDs or registering domain names before it is known whether the use of a word in the TLD or domain name, in fact, infringe upon the rights of a trademark holder.

Given the centrality of the idea of 'prior restraint' to this post, it seems important to outline the concept more definitively. Thus, more specifically, 'prior restraint' is the creation of any mechanism that effectively prevents or retards an individual from speaking or publishing material until they can prove the truthfulness or legitimacy of words they intend to speak or the material they intend to publish. See Near v. Minnesota, 283 U.S. 697 (1931). In the Ahmadinejad case we see a 'prior restraint' on speech until the speaker or publisher can show the Iranian government that the speech (broadly construed) will not to cause unrest in the population. In the GPML case, we see a proposed 'prior restraint' on the publishing of a TLD or domain name into the DNS until the publisher can prove that they have a 'legitimate' interest in the word or words at issue.

Later he writes:

Given the importance of the importance of the concept of 'prior restraint' in the context of the American legal tradition, not to mention in the context of the Internet's cultural tradition, it is difficult to imagine how the bestowing the right of 'prior restraint' on the owners of 'globally protected marks' meets this test. More specifically with regard to the latter issue, given the centrality and strength of the prohibition on 'prior restraints' in United States constitutional jurisprudence and that ICANN is inextricably linked and/or given authority by a federal agency of the United States government, it seems apparent that any opponent to the proposed scheme would have, at least at first blush, a credible argument to make before US courts, should they desire to prevent the implementation of the IP Clearing House recommendation into the new TLD space.

Beckstrom made it pretty clear to the New York Times last week that he thinks California Law (which last time I checked was under U.S. law) is good for ICANN and good for the Internet. Will he make that case to the IRT-supporters at ICANN?

ICANN's beleaguered Non-Commercial Users Constituency — the body in ICANN set up to represent non-commercial grassroots interests including those of, say, Iranian student protesters trying to use the Internet to organize and get their message out — has issued two long position papers, one on the substantive problems and one on the procedural problems of the IRT. In a nutshell, they write:

"the substantive IRT recommendations take ICANN far afield of its technical scope and mission, create substantive new trademark rights (beyond existing law), gut existing safeguards and fair procedures for domain name registrants in the Uniform Dispute Resolution Policy ("UDRP"), and create an unbounded situation for abuse by trademark lawyers and those representing trademark owners."

If you're interested in working with the NCUC to advocate for non-commercial grassroots interests in the domain name system, apply to join the constituency here (having no funding and no paid staff, their site is not the most impressive ever to be seen, but they're working to build it with a group of volunteers).

The NCUC itself is fighting for fair representation within ICANN's allegedly bottom-up, grassroots, and inclusive decision-making process. Right now they are under-represented on the GNSO Council (one of the councils that inputs to the iCANN board which then makes final decisions). Efforts to get equal representation for NCUC delegates on the council, in proportion with commercial interests, have met with roadblocks. It's a long, political story. Click here and here for all the gory details. In a nutshell: first, the NCUC is having a charter imposed on them which create a very top-down structure, as opposed to the more bottom-up and democratic structure agreed upon by the community; secondly, the NCUC is only allowed to elect 3 of its 6 council seats: the remaining 3 will be appointed for them by the Board. NCUC chair Robin Gross writes:

Welcome to "bottom-up" policy making at ICANN: where participants are invited to build a "consensus" among a broad range of interests, only to have that consensus discarded by ICANN as a result of relentless insider back-channel lobbying from special interests.

Apparently we noncommercial users wasted our time building consensus among global civil society and participating in a public discussion forum, when we should have been lobbying ICANN board members and ICANN executive staffers — since that seems to be the only channel of public input ICANN feels accountable to.

Obviously, noncommercial users will never be able to effectively participate in a policy development forum that is predicated on and dominated by insider lobbying from entrenched commercial interests. ICANN's Board of Directors has a responsibility to the global public interest to ensure noncommercial interests can play a meaningful role in ICANN policy development despite its lack of economic backing. Unfortunately protection for noncommercial interests is systematically being squeezed-out of ICANN's policy development process by commercial interests.

Many people representing commercial interests might argue that simply by engaging in Internet business and connecting people around the world, the needs and interests of students in Iran or ethnic minorities in China are ultimately being met anyway. But experience with Microsoft, Yahoo, Google, and other companies in China has shown that the real world is not so simple. Companies do not always have the human rights interests of their users foremost in mind — understandably, they're seeking to maximize profits for their shareholders. As result, however, free expression can become collateral damage. Google, Yahoo, and Microsoft finally recognized this to be true and signed on to the multi-stakeholder Global Network Initiative, working together with non-governmental free speech organizations, academics, and socially responsible investors to make sure that they conduct their business around the world in ways that do not trample on users' rights to free expression and privacy.

I hope that like those three Internet giants, ICANN will also recognize that even the most well-meaning Internet entrepreneurs from Silicon Valley are capable of making very bad mistakes. Ordinary non-commercial Internet users all around the world who use the Internet to improve their communities and countries would very much like to help ICANN build an Internet that can support and expand global freedom. But most of these people don't have budgets to fly around the world to ICANN meetings, as companies and governments do. ICANN needs to make an effort to ask questions, seek out these people's concerns, and really listen.

Let's hope that Beckstrom will live up to what he said in Sydney. Nobody expects him to die for free speech as did the Iranian activists he praised. But we certainly hope that he will make a genuine effort to support and protect it.

By Rebecca MacKinnon, Journalist and activist; Co-founder, Global Voices Online
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